The misstatment of law which I wanted to address is the categorical conclusion of many reporters on the story that employees never have a Fourth Amendment privacy right in text messages sent and received on government owned devices. Such statements can be found all across the reporting on the story:

-"But once even private citizens start using company equipment in their communications — whether it's e-mail from the office computer or text messages from the company cell phone or BlackBerry — expectations of privacy disappear. 'There is no right of privacy then. An employer can do anything he wants.'"

Such sweeping statements are misleading. True, when the government, like any employer, tells an employee that an employer-issued computer, phone, or other device is subject to search, the employee likely has no reasonable expectation of privacy and thus no Fourth Amendment right in his use of the device. That said, when an employer does not include such a disclaimer about the possibility of a search, courts often find that employees do have reasonable expectations of privacy and Fourth Amendment rights, as I noted in my reporting on a case where a court found that a search of a reverend's church-owned computer violated his Fourth Amendment rights.

Similarly, in Quon v. Arch Wireless Operating Co., Inc., 445 F.Supp.2d 1116 (C.D. Cal. 2006), a lieutenant told police department employees that he would not audit their city-issued pagers as long as they agreed to pay overages. The pagers were subsequently audited, but the District Court for the Central District of California found that the audit violated the employees Fourth Amendment rights and that the text messages recovered were inadmissible because, inter alia, the employees had a reasonable expectation of privacy in their use of the pagers. Id. at 1141. The court also found that the fact "[t]hat the pager in question was owned by the City add[ed] nothing by itself to the analysis" and rejected a "per se rule that public employees cannot have a reasonable expectation of privacy when using property owned by their employer." Id.

Thus, it seems clear that employees, including public employees, can have privacy interests in their employer-owned devices, with the key question being whether and to what extent the employer communicated to the employee that the device could be searched.

The privilege grants near-absolute protection for the name and any information that would lead to the disclosure of the identity of confidential sources. Under Rule 509, a journalist will only have to identify a confidential source where there is clear and convincing evidence that the information is necessary to prevent substantial inury or death. Furthermore, the rule covers unpublished information such as notes, outtakes, photos, tapes and documents collected by a reporter in pursuit of a story and states that a judge can order disclosure of such materials only after balancing the need of the party seeking the information against the public interest in protecting the free flow of information.

In United States v. Shanrie Co., 2008 WL 161467 (S.D. Ill. 2008), the United States brought an action to enforce the Fair Housing Act, claiming that the defendants failed to design and construct Applegate Apartments in Swansea, Illinois so as to be accessible to persons with disabilities. In order to help prove its case, the government sought to introduce evidence of subsequent remedial measures taken by the defendants to make the apartments more handicapped accessible to prove that such measures were feasible. Id. at *1. The defendants responded by making a pretrial motion in limine to exclude this evidence pursuant to Federal Rule of Evidence 407.

The District Court for the Southern District of Illinois noted that the government contended that while Rule 407 "prohibits evidence of subsequent measures when used to prove 'negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction' the rule 'does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ... feasibility of precautionary measures.'” Id. The court noted that the government further contended that the evidence it sought to admit was admissible under Rule 407 "for the purpose of 'showing that the defendants can feasibly and promptly make Applegate Apartments accessible.'" Id. The court agreed with the government and thus denied the defendant's motion in limine.

There's a huge problem, however, with the court's decision. The problem becomes clear when language of Rule 407 is listed in its entirety. Under Rule 407, "[w]hen, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." (emphasis added). As is clear from this language, evidence of subsequent remedial measures is only admissible to prove feasibility if the opposing party has claimed that such a measure was not feasible. Furthermore, it appears that the 7th Circuit has taken the "narrow" view of feasibility and determined that a party only controverts feasibility when he claims that a remedial measure was economically or technologically impossible. See Lolie v. Ohio Brass Co., 505 F.2d 741, 745 (7th Cir. 1974).

Now, I don't have access to the defendants' brief, so perhaps they did claim that it was impossible to make the apartments accessible, triggering the feasibility portion of Rule 407. That said, it is clear that the court did not mention such an argument in its opinion, and its partial citation of Rule 407 makes it appear as if feasibility does not need to be controverted to be proven under RUle 407.

This week, the court agreed with the prosecution, finding that the evidence of the alleged victim's previous relationship with another woman was inadmissible. What this case thus seems to reveal is that even though Pennsylvania's Rape Shield Law is worded differently than Federal Rule of Evidence 412, they have the same scope. Federal Rule of Evidence 412 states that in any civil or criminal proceeding alleging sexual misconduct, two type of evidence are admissible unless exceptions apply:

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior, and

As noted in the Advisory Committee's Notes, evidence of other sexual behavior includes physical contact such as sexual intercourse, and activities of the mind, such as fantasies or dreams. Evidence of sexual predisposition includes "the alleged victim's mode of dress, speech, or life-style."

Pennsylvania has not adopted a counterpart to Rule 412, but under 18 Pa.C.S.A. Section 3104, "[e]vidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence."

If the use of "sexual conduct" in the Pennsylvania were merely equated with the use of "sexual behavior" in Rule 412, evidence of an alleged victim's sexual preference would likely not be excluded under 18 Pa.C.S.A. Section 3104 because it is "life-style" evidence covered under the "sexual predisposition" heading in Rule 412. The Gaddis case, however, indicates that such lifestyle evidence is presumably included under 18 Pa.C.S.A. Section 3104, making it functionally equivalent to Rule 412 in that regard.

The court then re-scheduled trial for October 30, 2006 and informed the prosecution that it would dismiss the case if Clark failed to appear. The prosecution responded, "If it please the Court, we will also go through the Interstate Act to make sure that he is properly served in the state of Missouri. But we'll -- we will dismiss if he's not here on October 30." On October 30, however, Clark did not appear, and the prosecution admitted that it did not issue an out-of-state subpoena to Clark in Missouri, instead relying on his mother's promise that he would appear at trial.

Nonethless, the prosecution attempted to prove that Clark was "unavailable" pursuant to Tennessee Rule of Evidence 804(a)(5) because he was absent at trial, and the prosecution was unable to procure his "attendance by process." Assuming that it could thus establish his unavailability, it sought to introduce his preliminary hearing testimony under Tennessee Rule of Evidence 804(b)(1) as former testimony. The trial court, however, found that the prosecution had failed to prove that Clark was "unavailable," leading the prosecution to appeal to the Court of Criminal Appeals of Tennessee.

That court found that the proponent of the evidence under Tennessee Rule of Evidence 804(a)(5) bears the burden of proving that it made a "good faith" effort to obtain the declarant's presence at trial; a good faith effort means a "reasonable" effort. The court then found that issuing a subpoena to Clark in Tennessee but thereafter not issuing a subpoena to him in Missouri and simply relying on his mother's promise that he would attend was not a "good faith" effort, rendering his former testimony inadmissible. This seems to me to be a fair conclusion, especially in light of the fact that the prosecution failed to live up to its promises made at the October 30the hearing.

The Court of Appeals of North Carolina's recent opinion inState v. Lewis, 2008 WL 131223 (N.C. App. 2008), contains an application of Rule 606(b) that I have never before seen. In Lewis, the defendant Paul Brantley Lewis, was convicted of first-degree sexual offense, robbery with a dangerous weapon, and felony breaking and entering. Among the jurors hearing his case was Deputy Eddie Hughes of the Avery County Sheriff's Department. Deputy Hughes actually knew Lewis through his work at Avery County Jail, where he twice transported him to Central Prison. While Hughes transported Lewis to Central Prison, Lewis disclosed to him that he had failed a polygraph test. However, despite Hughes admitting these facts during voir dire, Lewis' attorney did not use a peremptory challenge to remove Hughes.

On appeal, the Court of Appeals of North Carolina indicated that the issue of whether Hughes could testify about this conversation to disturb the trial court's verdict was governed by North Carolina Rule of Evidence 606(b). Rule 606(b) states that "[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes."

While this is a unique application of the rule, I think that it is fundamentally similar to cases finding that threats by relatives of a defendant or victim to jurors constitute improper outside influences, allowing testimony concerning such threats to be admissible under Rule 606(b).

In Kimpton Hotel & Restaurant Group, LLC v. Monaco, Inc., 2008 WL 140488 (D. Colo. 2008), the plaintiff sued the defendant for trademark infringement, unfair competition, and unjust enrichment based upon the defendant's use of the name "Monaco Inn," which the plaintiff allegedly had trademarked. Meanwhile, the defendant filed petitions for trademark cancellation for all of the plaintiff's registered trademarks with the United States Patent and Trademark Office. Id. All of this led to the plaintiff bringing a declaratory judgment against the defendant, during which the plaintiff submitted certain statements made by the defendant during pre-suit settlement negotiations. Id. The defendant moved to strike these statements pursuant to Federal Rule of Evidence 408(a), which states that evidence of compromises, offers to compromise, and related statements are inadmissible to prove liability for, invalidity of, or amount of a claim that was disputed as to liability or amount, or to impeach through a prior inconsistent statement or contradiction. Rule 408, however, goes on to state that evidence is admissible if offered for purposes not prohibited by 408(a). The Rule then lists as three illustrative examples: proving bias, negating a contention of undue delay, and proving an effort to obstruct a criminal investigation or prosecution.

As I've noted before, however, these three illsutrative examples are non-exhaustive, and courts typically find that such settlement/compromise evidence is admissible for any purpose not specifically listed in Federal Rule of Evidence 408(a). Thus, in the recent case, Rhoades v. Avon Products, Inc., 2007 WL 2983757 (9th Cir. 2007), the Ninth Circuit found that a settlement letter was admissible to prove the reasonable apprehension necessary to bring a declaratory judgment action. In Kimpton, the District Court of the District of Colorado relied upon this same reasoning in finding the defendant's statements made during pre-suit settlement negotiations to be admissible.

The district court, however, also relied upon an alternate explanation I haven't seen used before in Rule 408 jurisprudence. Specially, the court found that the defendant's statements made during pre-suit settlement negotiations were admissible to prove unclean hands. A quick Westlaw search reveals that the District Court for the Central District of California actually used this same rationale in its opinion last November in Cyr v. Reliance Standard Life Ins. Co., 2007 WL 4246049 (C.D. Cal. 2007), but it does not appear that any courts had previously found proving unclean hands to be a permitted purpose under Rule 408.

This new evidence sets the stage for what could be a legal battle over the admission of the secret in court. The admissibility of Wilson's affidavit will be governed by Federal Rule of Evidence 804(b)(3), which Illinois courts have found is applicable in Illinois cases. See, e.g., People v. Tenney, 793 N.E.2d 571, 587 (Ill. 2002). Rule 804(b)(3), indicates that when a declarant is unavailable, his prior statements can still be admissible as "statements against interest," an exception to the rule against hearsay. Under Rule 804(b)(3), a statement against interest is "[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."

At the same time, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." Obviously, Wilson's affidavit was a statement which tended to expose him to criminal liability for the McDonald's robbery/murder, so its admissibility will depend on whether the "corroborating circumstances clearly indicate the trustworthiness of the statement." As the Supreme Court of Illinois has noted, "'[i]n determining whether the declarant's statement has been sufficiently corroborated to merit admission in evidence, the judge should not be stringent. * * * If the issue of sufficiency of * * * corroboration is close, the judge should favor admitting the statement.'" Tenney, 793 N.E.2d at 587 (quoting Commonwealth v. Drew, 489 N.E.2d 1233, 1241 n.10 (Mass. 1986)).

Thus, it seems to me that the evidence linking the shotgun found at Wilson's alleged hiding place to the McDonald's robbery/shooting and Hope's statement that Wilson and not Logan was the shooter would constitute sufficient corroborating circumstances to allow for the admission of the affidavit into evidence.

(My essay, Ordeal by Innocence, which addresses the Alton Logan case and why there should be a wrongful incarceration/execution exception to attorney client confidentiality can be downloaded witha free SSRN subscription [SSRN link]. My other posts on the Alton Logan case can be found here, here, here, and here).

The STATIC-99 is an actuarial risk prediction instrument designed to estimate the probability of sexual and violent reconviction for adult males who have already been charged with or convicted of at least one sexual offense against a child or a non-consenting adult. An expert uses STATIC-99 to match a sex offender's characteristics to characteristics found in studies of convicted sex offenders to determine their likely recidivism rate.

The Seventh Circuit then found that McIlrath had not addressed these criticisms and held that "without any effort by the defendant's lawyer to establish the reliability of Dr. Ostrov's methodology -- or even to explain it -- the judge was entitled to discount his prediction." Now, as noted, this was not a decision that addressed the admissibility of STATIC-99 results, and maybe McIrath's lawyer simply dropped the ball. But it certainly seems like the Seventh Circuit was holding that STATIC-99 results are too unreliable to be admissible as expert evidence, and it should be interesting to see how courts in future cases deal with this evidence.